Legislature(2015 - 2016)BELTZ 105 (TSBldg)
04/16/2016 09:00 AM Senate JUDICIARY
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HB 126-CODE OF MILITARY JUSTICE; APPEALS 10:26:47 AM CHAIR MCGUIRE reconvened the meeting and announced the consideration of HB 126. She noted this is the first hearing, SCS CSHB 126(STA) is before the committee, and the intention is to move the bill today. She deferred to Senator Costello to say how much of an overview she would like because the other members already heard the bill. SENATOR COSTELLO requested an adequate overview. 10:27:44 AM CHRISTOPHER WEAVER, Lieutenant Colonel, Alaska National Guard, Staff Judge Advocate for the Adjutant General, Department of Military & Veterans' Affairs (DMVA), Joint Base Elmendorf- Richardson, Alaska, explained that HB 126 was introduced after the Office of Complex Investigations with the National Guard Bureau issued a report stating that the Alaska National Guard did not have a functioning military justice program. He related that the Alaska National Guard does not have a codified punishment system and the other tools it attempts to use are inadequate, resource intensive, and generally do not fit the punishment scheme. For this reason a Uniform Code of Military Justice (UCMJ) and Alaska Code of Military Justice (ACMJ) are needed. The idea is that civilians will prosecute civilian crimes and the military will prosecute military crimes or the crimes that affect the unit. If there's a light crime like sexual assault, the military would look at it to see if it meets military elements. He noted that this would affect nonjudicial punishment for minor offenses and courts-martials for more serious offenses. He directed attention to a document in the packets that enumerates various offenses and the maximum punishment as it relates to confinement. SENATOR COSTELLO asked him to talk about the process; how the legislation was drafted, who was involved, the response, and the significance of the bill. COLONEL WEAVER spoke to the Guard's input in the bill. They tried to keep the process open and brought in people of various ranks to run through scenarios and trainings. They talked to different commanders to learn what they needed to ensure good order and discipline. They looked at what other states have done recently to implement a state military code. CHAIR MCGUIRE recalled that two years ago the Senate Judiciary Committee brought in corrections officers to talk about corrections issues. Thereafter the committee returned to the issue of the military and the National Guard. She didn't recall if there was a full hearing or just discussion about the sexual harassment claims in the Alaska National Guard. She asked Senator Coghill to talk about the report she advocated. 10:34:36 AM SENATOR COGHILL said the committee was looking for information about the same issue that the National Guard was dealing with. CHAIR MCGUIRE said some members were vocal about the culture within the Alaska National Guard under former Adjutant General Katkus and former Deputy Commissioner McHugh Pierre. She recalled three areas of concerns: a culture of sexual harassment with no opportunity to make a claim; misuse of government property; and drug misuse. This played out in the last governor campaign and election. Commissioner and Adjutant General Laurie Hummel came in with the mission to address those concerns through the update of the Alaska Code of Military Justice that was last updated in 1955. The idea is that updating the code and the process by which individuals are disciplined will inspire more confidence in the system and raise morale. The intention is to correct the action and get the individual back on the right course. COLONEL WEAVER agreed that is the goal. 10:37:56 AM CHAIR MCGUIRE said the remaining controversy with the bill is the amendment to reinsert the no turndown clause. In a previous committee Senator Huggins expressed concern with the provision and offered an amendment to remove it. The remainder of the bill is relatively uncontroversial. 10:38:31 AM SENATOR COGHILL said he suspects there will be a cost associated with the bill despite the fiscal notes that were zeroed. He is satisfied at this point that the federal government will pick up much of the adjudication costs. CHAIR MCGUIRE thanked Colonel Weaver for his service to the country and state. She asked him to synthesize why he wants the no turn back clause in the bill, how National Guard personnel are disciplined, and what a courts-martial means. COLONEL WEAVER said a no turn down provision for nonjudicial punishment means a soldier facing a minor offense charge may not decline the imposition of nonjudicial punishment in favor of a courts-martial. In the Senate State Affairs Committee, Senator Huggins argued against having a no turn down provision in the nonjudicial punishment regulations. The Alaska National Guard would prefer that provision be adopted in regulation, but not without having a conversation with Senator Huggins first. 10:42:29 AM CHAIR MCGUIRE indicated she would take an at-ease waiting for Senator Wielechowski to return with an amendment. SENATOR COGHILL asked if this code will make it more difficult for the Alaska National Guard to be flexible and help in a community. COLONEL WEAVER replied it will have no effect whatsoever in that area. CHAIR MCGUIRE reviewed the recent discussion and asked Senator Wielechowski to offer his amendment. 10:44:14 AM SENATOR WIELECHOWSKI moved to adopt Amendment 1, labeled 29- LS0473\L.1. AMENDMENT 1 OFFERED IN THE SENATE TO: SCS CSHB 126(STA) Page 9, line 8: Delete "confinement of more than one year is sought" Insert "the member of the militia is accused of committing an offense that is punishable by confinement of more than one year" Page 27, line 1: Delete "authorized" Insert "imposed" Page 27, line 5: Delete "authorized" Insert "imposed" SENATOR COGHILL objected. SENATOR WIELECHOWSKI explained that both Amendment 1 and Amendment 2 reverse changes made in the Senate State Affairs Committee and restore the legislation to the language that passed the House. He deferred to the sponsor to provide her view of why this is important. 10:45:16 AM REPRESENTATIVE GABRIELLE LEDOUX, Alaska State Legislature, sponsor of HB 126, described Amendment 1 as an antidote to the poison pill amendment adopted in Senate State Affairs. It reverses making a felon of a National Guard member who didn't show up for work for a couple of days. The State Affairs version of the bill goes against what the legislature is trying to do this session to keep nonviolent offenders out of jail, and it goes against what is intended in HB 126. 10:48:17 AM CHAIR MCGUIRE said she understands that point of view but Senator Huggin's point is that a person serving in the military would want an opportunity to clear their name. SENATOR WIELECHOWSKI clarified that she was speaking to proposed Amendment 2; Senator Stoltze offered the amendment that Amendment 1 reverses. CHAIR MCGUIRE restated Senator Huggins' concern with proposed, yet to be offered, Amendment 2. REPRESENTATIVE LEDOUX said she is prepared to defer to the Guard on upcoming Amendment 2. CHAIR MCGUIRE said she has no concern with Amendment 1. SENATOR COGHILL said the period of confinement is a policy call and then removed his objection to Amendment 1. 10:50:59 AM CHAIR MCGUIRE found no further objection, and Amendment 1 was adopted. 10:51:11 AM SENATOR WIELECHOWSKI moved to adopt Amendment 2, labeled 29- LS0473\L. AMENDMENT 2 OFFERED IN THE SENATE TO: SCS CSHB 126(STA) Page 3, lines 8-10: Delete "or prohibit a member of the militia from declining the imposition of nonjudicial punishment in favor of a courts-martial" SENATOR COGHILL objected. 10:51:30 AM SENATOR WIELECHOWSKI explained that Amendment 2 essentially is the no turn down provision. He deferred to the National Guard to speak to the provision. He said he respects their opinion and they have experience with the provision in other states. COLONEL WEAVER deferred to Colonel Hummel or Deputy Commissioner Doehl. CHAIR MCGUIRE asked Colonel Hummel to explain why the no turn down provision is important. 10:52:29 AM COLONEL LAURIE HUMMEL, Commissioner/Adjutant General, Department of Military & Veterans Affairs (DMVA), deferred to Deputy Commissioner Doehl to talk about the Guard's opinions on the no turn down provision. 10:53:15 AM RETIRED COLONEL BOB DOEHL, Deputy Commissioner, Department of Military & Veterans Affairs (DMVA), Anchorage, Alaska, suggested looking at this from the perspective that all ranks looked at the issue from a military context going forward with the no turn down provision. He pointed out that the military has numerous programs with far more severe consequences that have no turn down provisions and they have been repeatedly upheld in the judicial process as meeting appropriate due process to the accused. Therefore, it has been demonstrated in the military context that we can effectively be just to the individuals facing these programs, he said. He said that if the legislature decides to implement a no turn down provision, the Guard will execute it but it will result in increased risk to the force, because the Alaska National Guard receives no additional funding from the National Guard Bureau for implementing the provision. It will be costly to comply. 10:55:25 AM SENATOR COSTELLO asked if there is data showing, if the no turn down provision was offered, the percentage of time someone would prefer a courts-marital. COLONEL DOEHL said it would be speculative to offer a percentage at this point, but it's likely there would be far more challenges in the first year to test the system. SENATOR COSTELLO asked for an estimate of what one case might cost. COLONEL DOEHL said it depends on the nature of the matter but more than the dollar cost it's the number of days the people spend in the process. One or two people handling a simple matter something like dereliction of duty could result in the loss of 20 or 30 additional training days. That means they wouldn't be as prepared when they are deployed or to serve the state in an emergency. SENATOR WIELECHOWSKI asked Colonel Weaver to discuss the experience in other states and questioned whether the no turn down is a federal provision. COLONEL WEAVER said the trend is moving toward no turn down, as recommended in the model code by the National Guard Bureau. He noted that Kansas felt hamstrung and recently changed their statutes to put in a no turn down provision. He related his experience that good soldiers that make a mistake will accept this whereas the bad soldier will ask for the courts-martial. He estimated a special courts-martial costs from $3,000 to $7,000. 10:59:00 AM CHAIR MCGUIRE recommended moving the bill along "as is." She said there is no reason you can't come back later on with more discrete evidence and focus to get the no turn down provision restored. She further suggested asking the federal government for more grant money to address the long-standing problem in Alaska that yielded a change in leadership; Alaska's code of military justice has just been updated for the first time since 1955 and resources are needed to continue to move forward. She deferred to Senator Wielechowski as to whether he wanted to move forward with Amendment 2. 11:01:26 AM SENATOR WIELECHOWSKI said he respects her opinion, but he can't in good conscience remove the amendment. Without it, combat readiness will be diminished and the process of justice will be slowed. He indicated he will offer the amendment on the floor if it fails in committee. SENATOR COGHILL said it's appropriate that individuals whose career is on the line are able to defend themselves. CHAIR MCGUIRE requested a roll call. A roll call vote was taken. Senator Wielechowski voted in favor of Amendment 2 and Senators Costello, Coghill, and McGuire voted against it. Therefore, Amendment 2 failed by a 1:3 vote. 11:03:21 AM CHAIR MCGUIRE found no further amendments, questions, discussion, or public testimony. She closed public testimony and solicited a motion. 11:03:26 AM SENATOR COGHILL moved to report the amended Senate CS for CS for House Bill 126, from committee with individual recommendations and attached fiscal note(s). CHAIR MCGUIRE announced that without objection, SCS CSHB 126(JUD) is reported from the Senate Judiciary Standing Committee.